Subscribe by Email

Subscribe in a Reader

Disclaimer

Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Pages

Wednesday, July 29, 2015

Stars Caberet is a nude dancing
establishment in Neenah, Wisconsin. When Stars opened in 2006, the County had a
zoning ordinance that restricted the location of adult businesses to certain
zoning districts and required a conditional use for their operation. In Stars'
first lawsuit against the County, it challenged the constitutionality of the
2006 ordinance. During the pending lawsuit, the County amended the ordinance
and Stars' dismissed its lawsuit. However, Stars brought a second lawsuit to
challenge the 2007 amendment, and the court enjoined the County from enforcing
the conditional use requirement, but upheld the remainder of the ordinance
based on the ordinance's severability provision.

Following the decision in the second
lawsuit, the County informed Stars that it could not continue its operations
because the business was never legal. Stars subsequently filed a third lawsuit
asking the judge to declare its operation lawful under federal law or, in the
alternative, a legal nonconforming use under state law. The district court
ruled against Stars, finding that notwithstanding the ordinance's illegality,
the business as unlawful when it opened in 2006.

On
appeal, the Seventh Circuit noted that the County's ordinancewasan illegal prior restraint on
expressive speech in violation of the First Amendment. However, the Court
noted that the ordinance included a severability provision, which could allow a
court to sever the unlawful provisions of the ordinance from the remainder of
the ordinance. Therefore, the Seventh Circuit held that the district court
should have dismissed the state law claims because the application of the
severance provision is a question of state law, especially where local land use
matters are often resolved in state court, absent an overriding federal-law
question. Accordingly, the Seventh Circuit dismissed the state law claims, so
that the parties may (if they wish) pursue them in state court. Green
Valley Investments, LLC v. Winnebago County (7th Cir. July 27, 2015)